Tuesday, July 30, 2013

SC: Freebies and Disqualification of elected representatives

AIADMK chief and Tamil Nadu Chief Minister Jayalalithaa presenting a laptop computer to a student at a ceremony in Chennai on September 15, 2011. Photo:AFP

The DMK's election promises of free television sets, rice at Rs.2 a kg and gas stoves on symbolic public display at Thiruverumbur near Tiruchi. Photo:M. Moorthy

Three recent judgments by the Supreme Court and one interim order by the Lucknow Bench of the Allahabad High Court have a direct impact on the functioning of Indian democracy. By V. VENKATESAN in New Delhi

INDIAN democracy has a number of aberrations. Some of these have been accepted for so long as intrinsic to its vibrant functioning that none considered them in a pejorative sense—until a few public interest litigants felt that they had the historic responsibility to challenge the legitimacy of these in the higher judiciary. In July, they were successful in seeking a limited restraint on four of them.

In the first case, S. Subramaniam Balaji vs Government of Tamil Nadu and others, decided on July 5 by the Chief Justice of India-designate Justice P. Sathasivam and Justice Ranjan Gagoi, the appellant, Subramaniam Balaji, had challenged the distribution of free gifts (freebies) by political parties on the eve of elections. The Madurai Bench of the Madras High Court had dismissed Balaji's writ petition in which he had argued that the free distribution of colour television sets by the Dravida Munnetra Kazhagam government in Tamil Nadu after the 2006 Assembly elections, to honour the party's pre-election promise to the electorate, was a waste of public money.

Balaji had also challenged the legitimacy of the promises made by both the ruling and opposition parties in Tamil Nadu on the eve of the 2011 Assembly elections. After the All India Anna Dravida Munnetra Kazhagam (AIADMK) was elected to power, its government, under Jayalalithaa, started distributing various freebies to keep the promises made in its election manifesto. Balaji thus sought the intervention of the court to declare the State government's free distribution of grinders, mixies, electric fans, laptop computers, four-gram gold thalis, solar-powered green houses and 20 kilograms of rice to all ration card holders, including those above the poverty line, and cattle and sheep as ultra vires of the provisions of the Constitution of India and Section 123(1) of the Representation of the People Act, 1951, which punishes bribery by candidates or their agents.

The Supreme Court rejected the contention that the promises made by a political party are violative of Section 123(1) of the RPA. Section 123 and other relevant provisions, it held, contemplate corrupt practice by an individual candidate or his agent. Moreover, such corrupt practice is directly linked to his own election irrespective of the question whether his party forms a government or not. The provisions of the RPA place no fetter on the power of political parties to make promises in the election manifesto, the court held.

Secondly, the court held that the concept of state largesse is essentially linked to the Directive Principles of State Policy. Whether the state should frame a scheme, which directly gives benefits to improve the living standards or indirectly does so by increasing the means of livelihood, is for the state to decide and the role of the court is very limited in this regard, it observed. It held that judicial interference was permissible when the action of the government was unconstitutional and not when such action was not wise or when the extent of expenditure was not for the good of the state.

The court, however, agreed with the appellant that distribution of freebies of any kind undoubtedly influenced all people. "Freebies shake the root of free and fair elections to a large degree," it said.

The Election Commission (E.C.), in its submissions to the court in this case, also felt that the promise of such freebies at government cost disturbed the level playing field and vitiated the electoral process. It expressed willingness to implement any directions of the court in this regard.

Considering that there was no enactment that directly governed the contents of the election manifesto, the court directed the E.C. to frame guidelines for the same in consultation with all the recognised political parties. The court also suggested the enactment of a separate law for governing political parties.

The E.C. then called a meeting of all political parties to implement the court's direction suitably in the Model Code of Conduct for candidates and political parties.

As the code comes into effect only from the date of announcement of elections by the Commission, the court suggested that the E.C. make an exception to this norm, as political parties issued their manifestos prior to the announcement of the election schedule.

Disqualification of elected representatives

In the second case, Lily Thomas vs Union of India (filed by Lok Prahari, a non-governmental organisation), decided on July 10, a Bench comprising Justices A.K. Patnaik and Sudhansu Jyoti Mukhopadhaya held Section 8(4) of RPA ultra vires of the Constitution. Section 8 of the RPA has a threefold categorisation of offences that could lead to the disqualification of elected representatives. Under the first category, covered by Sub-clause (1) of Section 8, a large number of offences are listed, conviction for any one of which entails disqualification. These include rape, insulting the national flag, certain offences under the Unlawful Activities (Prevention) Act, the Foreign Exchange Regulation Act (FERA), the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Protection of Civil Rights Act, the Prevention of Corruption Act, and the Narcotic Drugs and Psychotropic Substances Act, and certain offences relating to places of religious worship, maintenance of communal harmony, and commission of sati.

The second category, covered by Sub-clause (2) of Section 8, comprises offences relating to hoarding, profiteering and adulteration of food and drugs, and those under the Dowry Prohibition Act. Conviction and a sentence of imprisonment of not less than six months for any such offence entail disqualification.

The third category, provided by Sub-clause (3) of the Section, deals with all other offences. Conviction and a sentence of imprisonment of not less than two years for any such offence entail disqualification. The disqualification of the elected member is to be effective from the date of conviction and will continue until the completion of six years since his or her release from imprisonment.

Sub-clause (4), which has been struck down by the court, reads as follows:

"Notwithstanding anything [in Sub-section (1), Sub-section (2) or Sub-section (3)] a disqualification under either Sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or of the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."

On the face of it, this provision offended the principle of equality by extending the elected members of Parliament and State legislatures the benefit of retaining their membership by virtue of their filing an appeal against their conviction or sentence, while denying the same to non-members. However, the court struck down this provision not on this ground, which would have required it to examine whether the classification of elected members as a separate class deserving special treatment was justified. Instead, the court found it easy to declare it ultra vires because it was glaringly inconsistent with the constitutional provisions relating to the disqualification for membership of Parliament and the State Assemblies.

Under Article 102(1), a person shall be disqualified from being chosen as, and for being, a member of either House of Parliament, if he is so disqualified by or under any law made by Parliament. Article 191 makes a similar provision with regard to membership of the State Legislative Assemblies or councils. As these Articles make no distinction between being "chosen as" and "for being" a member, the court had no difficulty in concluding that Parliament had no power to make a law to undo these express provisions of the Constitution.

In other words, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification he cannot continue as a member of Parliament or of the State Legislature. Once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution, and Parliament cannot make a provision as in Sub-section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat from becoming vacant on account of the disqualification, the court ruled.

The court, however, clarified that a person—whether a member or a non-member—will not suffer disqualification if he or she obtains a stay of his or her conviction, and not just sentence.

Applying the doctrine of prospective overruling, the court held that those MPs and MLAs who had already filed their appeals against their conviction or sentence would not suffer disqualification on account of their pendency. If, however, they suffer disqualification after the pronouncement of this judgment, then they cannot invoke the protection of Sub-clause (4) of Section 8 of the RPA, the court ruled.

On electors

In the third case,The Chief Election Commissioner vs Jan Chaukidar (People's Watch), the judgment in which was also pronounced on July 10, the same Bench of the Supreme Court concurred with a ruling of the Patna High Court that a person who has no right to vote is not an elector, and is, therefore, not qualified to contest the election to the Lok Sabha or the State Assembly.

Section 4 of the RPA lays down the qualifications for membership of the Lok Sabha. One of these is that the candidate must be an "elector" in any Lok Sabha constituency. Section 5 of the RPA has a similar provision which states that the candidate for an Assembly election must be an "elector" for any Assembly constituency in that State.

Section 62 of the RPA is titled "Right to Vote" and it provides in Sub-section (5) that no person shall vote in any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police. This, however, does not apply to those subjected to preventive detention under any law. Reading these two provisions together, the High Court had held that persons in the lawful custody of the police would not be voters, in which case they would neither be electors; therefore, such electors would not be qualified to contest even if they found their names on the electoral rolls.

Curiously, in this case, although the E.C. had appealed against the Patna High Court order in the Supreme Court, it did so only on a very limited ground, to seek a stay of the order as the election process in Bihar had already begun that year. As the E.C. did not oppose the order on substantive grounds (on the contrary, it supports it), the Supreme Court found no reason to consider the possible legal objections to it.

Caste-based rallies

In the fourth case, Moti Lal Yadav vs Chief Election Commissioner, the Lucknow Bench of the Allahabad High Court, comprising Justice Uma Nath Singh and Justice Mahendra Dayal, pronounced a brief interim order on July 11, directing that there shall be no caste-based rallies with political motive throughout Uttar Pradesh, until the court heard the petition to issue a writ of mandamus to the E.C. to ban all caste-based rallies and congregations being organised with political motive and to cancel the registration of political parties found to be organising such rallies. The petitioner has also sought a ban on contesting elections on caste lines.

Observers are surprised that the court has issued such an interim order, without hearing the state or the E.C. against the submissions of the petitioner.

In its order, the court observed: "It is a historical fact that the caste system has existed across the religions and throughout the world, but it has always introduced the element of schism, and the evils of discrimination apart from inciting group violence in the society…. In their attempt to seek political base in the caste system by means of politicisation, it appears that the political parties have seriously disturbed the social fabrics and cohesiveness. It has rather resulted in social fissions." With such preconceived premises, it will be anybody's guess how the court will objectively hear the case of those who believe that a ban on caste rallies militates against the constitutional guarantee of the right under Article 19(1) to assemble peaceably and without arms. Mobilisation of castes with a political motive is not a ground mentioned in Article 19(2), which would enable the state or any authority to reasonably restrict such a right.

Most political parties have expressed their reservations about these four judicial interventions, which seriously restrict the freedom of political parties to plan their activities or choose their candidates for elections. They feel that while criminalisation of politics is a menace to be addressed, judicial intervention is not the right way to deal with it and the issue must be resolved by the lawmakers themselves. It appears that the Central government is considering to seek a formal review of the Supreme Court judgments in Lily Thomas and Jan Chaukidar.

There is a view that the court's ruling in Jan Chaukidar will lead to victimisation of political opponents by denying them the right to contest elections, by keeping them under police custody under some pretext, and thereby depriving their right to vote.

Lily Thomas, on the contrary, may lead to situations in which only the rich and powerful politicians manage to retain their seats in Parliament and State legislatures by managing to convince the courts to suspend their convictions, and not just sentences. It is pointed out that Navjot Singh Sidhu, the Bharatiya Janata Party MP, secured the suspension of his conviction by an appellate court. After Lily Thomas, members like Sidhu will not suffer disqualification, if they secure suspension of conviction by an appellate court, despite Section 8(4) of the RPA becoming unconstitutional.

The political class also apprehends situations when court verdicts regarding conviction and suspension of convictions would determine the stability of a ruling political coalition, thus negating the people's mandates in an election.

Shanker Chakravarty Lily Thomas: " If stability is coming from criminals, it is against natural law. "

Interview with advocate Lily Thomas, the petitioner in the Supreme Court case on Representation of People's Act. By SAGNIK DUTTA

LILY THOMAS, 85, an advocate in the Supreme Court, has worked on constitutional law, women's rights and issues of personal liberty. She was the petitioner in the Supreme Court case (Lily Thomas vs Union of India and others) where the court struck down Section 8(4) of the Representation of the People Act (RPA) as being unconstitutional. In 2000, in response to a petition filed by her, the Supreme Court came down heavily on conversion to Islam for the express purpose of entering into a second marriage. Lily Thomas spoke to Frontline about her passion for constitutional values, the possible impact of this judgment on the Indian polity, and the enhanced role of the judiciary and civil society. Excerpts:

The Supreme Court judgment striking down Section 8(4) of the RPA has been hailed as charting a path for decriminalisation of politics. What objectives did you have in mind when you filed the petition?

The primary aim that we had in mind was to ensure that Parliament and public service should be free of criminals and corruption. This is our job; it's the duty of the Bar. With my training and education as an advocate, I would consider it a serious dereliction of duty if I did not take up these issues. This petition was filed in 2005. Also, the Supreme Court has played an important role as the custodian of political ethics. It was receptive to this petition. There was an earlier judgment of the Constitution Bench of the Supreme Court in K. Prabhakarn vs P Jayarajan in 2005 which was interpreted by the respondents as upholding the validity of Sub-section(4) of Section 8 of the RPA. In the present judgment, the Supreme Court cited the case but said that the issue of constitutionality of Section 8 was not at all considered by the Constitution Bench.

What ramifications will the judgment have on Indian polity? Also, why did you think the Supreme Court did not apply the judgment retrospectively on politicians who have resorted to the use of this section?

It is for us as a society to make the judgment work. Corruption and criminality have become part of elections. This pattern of democracy has to be changed. All sorts of evils have crept into the practice of fighting elections. Thanks to judgments like these, our civil society is more active now. The civil society is a natural social phenomenon. We must create "centres of leadership". This is how democracy works. Then only will you become a part of the system. Otherwise, the government becomes an organisation run according to a patron-client system. Citizens do not have access to administration because of corruption. We must create access to an administration and a political system free of corruption.

During the hearing of this case, S.N. Shukla, advocate, cited a passage from the Constituent Assembly debates which clearly provides for disqualification of a Member of Parliament convicted of a crime. Though Article 102 of the Constitution allows Parliament to define disqualification, the right to appeal and the consequent three months' deferral of disqualification are not allowed by the Constitution. I think it was wise on the part of the Supreme Court not to apply the judgment retrospectively because this would have created a whole lot of practical problems. A huge amount of litigation would have come in then and it would have been a huge burden on the administration.

The judgment has once again brought to the fore the issue of Parliament restricting the powers of the government when legislation violates constitutional principles. Does this pre-empt more conflicts between the judiciary and the executive?

The judgment is a clinical interpretation of law, of what the Constitution says. The judiciary very well knows its own limits. The interpretation of law is the function of the judiciary. This judgment will make people think. It will create awareness about constitutional principles.

Doubts have been raised about the political implications of this judgment on the stability of governments in the long run. For instance, if a number of representatives are convicted on criminal charges, a crisis in the government might arise. What are your thoughts on this critique?

If stability is coming from criminals, it is against natural law. Crime does not give stability. Ethics give stability. Stability comes from natural justice. Politicians are making this argument because of their own vested interests. J.M. Lyngdoh had once referred to corrupt politicians as "cancer of society". Only a clean, "satvic" image of Parliament can provide stability.

Are there more such petitions in the offing? What issues do they address?

The court will get to know about the petitions first [smiles]. There is no stale news for the court.

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